Ontario College of Teachers v ZZD, 2021 ONOCT 19

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v ZZD 2021 ONOCT 19 Date: 2021-01-11

DECISION, REASONS FOR DECISION AND ORDER

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against [ZZD], a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS – and – [ZZD] (REGISTRATION #[XXX])

PANEL: Diane Ballantyne, OCT, Chair Tom Potter Stéphane Vallée, OCT

HEARD: October 21, 2019, February 6, 2020 and October 19, 2020

COUNSEL: Christine Lonsdale, Ava Arbuck and Kathryn McChesney, for the Ontario College of Teachers Naomi Greckol-Herlich and Parmbir Gill for [ZZD] Julie Maciura and Renée Kopp, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing, or the person who was allegedly sexually abused or the subject of the sexual misconduct or a prohibited act involving child pornography.

The Discipline Committee further ordered a publication ban pursuant to subsection 32.1(1) of the Ontario College of Teachers Act, 1996, preventing the public disclosure of the Member’s name.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on October 21, 2019 and continued on February 6, 2020 and October 19, 2020 at the Ontario College of Teachers (the “College”). The first two hearing dates were heard in person at the College offices. With the consent of the parties, and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3, the hearing concluded on October 19, 2020 by way of an electronic hearing.

2[ZZD] (the “Member”) did not attend the hearing but had legal representation.

A. PROCEDURAL HISTORY

3On October 21, 2019, Member’s Counsel brought a motion on behalf of the Member seeking that the Panel make an order preventing the public disclosure of the Member’s name. Before arguing the Motion and pursuant to subsection 32(7.1) of the Ontario College of Teachers Act, 1996 (the “Act”), Member’s Counsel sought an order excluding the public from the portion of the hearing in which the motion would be argued because sensitive information would be disclosed during this motion. College Counsel consented and the Panel closed the portion of the hearing relating to the Member’s motion.

4During the closed portion of the hearing on October 21, 2019, the Panel received evidence and heard submissions in relation to the Member’s motion. Member’s Counsel submitted that, in addition to the subsection 32(7.1) order already made, the Panel ought to apply subsections 32(7) and 32.1(1) of the Act to prevent the public disclosure of the Member’s name, because the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be open to the public. Member’s Counsel presented unopposed medical evidence to demonstrate that disclosing the Member’s name to the public (i.e. by publishing it in the Panel’s decision) would give rise to the possibility of serious harm or injustice to the Member.

5The Panel, however, requested that Member’s Counsel provide further medical documentation in support of the motion. The hearing was therefore adjourned until February 6, 2020, to allow the Member time to provide this evidence. On the request of College Counsel, the Panel made the following interim order on October 21, 2019:

The Member is not permitted to teach until the completion of the discipline proceedings, which have been adjourned to February 6, 2020. At the present time, there has been no finding made against the Member.

6On February 6, 2020, the parties returned to provide further evidence and submissions on the motion. The Panel, however, requested additional information regarding the possibility of harm to the Member if his name were to be published, and adjourned the hearing until April 15, 2020 to allow the Member time to address the Panel’s concerns.

7Due to the COVID-19 pandemic, the April 15, 2020 in-person hearing date was postponed, and the hearing resumed on October 19, 2020 via videoconference. On October 19, 2020, the Panel rendered its decision with respect to the Member’s motion and concluded the hearing on the merits.

B. PUBLICATION BAN

8The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

9Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of the Student who was allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of the Student

10In addition, on October 19, 2020 the Panel made an order preventing the public disclosure of the Member’s name, pursuant to subsections 32(7) and 32.1(1) of the Act.

C. DECISION ON MOTION

11Having considered the evidence and submissions of the parties as well as the relevant jurisprudence and legislation, the Panel granted the Member’s motion on October 19, 2020, pursuant to subsections 32(7) and 32.1(1) of the Act. The Panel agreed with the parties’ submissions that there is a possibility of serious harm to the Member if his name is published, which justifies a departure from the usual practice of public disclosure of members’ names in Discipline Committee decisions.

D. REASONS FOR DECISION ON MOTION

12The Panel decided to depart from the open court principle in this case and to order a partial publication ban (to not disclose the Member’s name through its written decisions) primarily based on the evidence of the Member’s serious medical condition and the possibility of serious harm to the Member if his name were to be publicly disclosed. Although this type of relief has occasionally been ordered in previous College discipline hearings,¹ this is a highly exceptional order. In arriving at its decision, the Panel considered the common law framework presented for assessing motion requests for non-publication orders;² however, the Panel finds that there is no need to apply this higher threshold analysis³ and ultimately based its decision on the two relevant provisions under the Act, the compelling medical evidence presented in this case, and the fact that the parties agreed that the circumstances of this case warranted a publication ban to protect the Member’s identity.

13The relevant provisions under the Act are subsections 32.1(1) and 32(7). Subsection 32.1(1) of the Act gives the panel the discretion to order a partial publication ban:

32.1(1) In situations under section 32 or 33 in which the Discipline Committee may make an order that the public, including members of the College, be excluded from a hearing, the Committee may make orders it considers necessary to prevent the public disclosure of matters disclosed at the hearing, including orders banning the publication or broadcasting of those matters.

Subsection 32(7) of the Act sets out the legal test for how to apply the Panel’s discretion regarding non-publication of the Member’s name:

32(7) The Discipline Committee may make an order that the public, including members of the College, be excluded from a hearing or any part of a hearing if, in the Committee’s opinion, the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be open to the public.

The threshold for meeting the test under subsection 32(7) is the possibility of serious harm. This is a lower threshold than “risk”, “threat”, “likelihood” or “probability” of serious harm; although, the Panel notes that the medical evidence presented in this case would also meet those higher thresholds.

14This is an exceptional case where the Member has provided unopposed medical evidence of the possibility of [XXX]triggered by the specific circumstance of having his name tied to the Discipline Committee’s decision. The Panel accepts the medical evidence provided by the Member’s treating physicians demonstrating that serious injury would likely result if the Member’s name were published.

15The Member [XXX]have been tied to these proceedings. Specifically, the evidence demonstrates that the Member remains susceptible to [XXX]and that there is a likelihood of [XXX]by the Member when faced with the stressor of having his name tied to the Discipline Committee’s decision. This medical opinion is supported by two physicians who have had a clinical relationship with the Member over an extended period. Dr. [XXX]has been treating the Member for four years as a physician in[XXX], and Dr. [XXX]has been the Member’s family physician for 25 years.

16Since 2016, the Member has been receiving [XXX]under Dr.[XXX] supervision at[XXX]. In Dr.[XXX]’s letter of October 8, 2019, he explained that the “current legal proceedings” have impacted the Member’s [XXX]“to the extent that we have reached a limit on how much [XXX]can help reverse some of these changes” (Motion Exhibit 2, Tab 7). In a subsequent letter of October 14, 2020, he further stated that effects of these legal proceedings on the Member’s [XXX]would be significant. He reaffirmed his concern for the Member’s [XXX] should the Member’s motion not be granted and indicated that the consequence which the Member could suffer from the publication of his name in the Discipline Committee’s decision would be “grave and difficult to fully remedy”. Dr. [XXX]confirmed that the Member continues to receive [XXX]for his [XXX]and that [XXX]had occurred during October 2019 (Motion Exhibit 4).

17Dr.[XXX], the Member’s family physician, provided a similar medical opinion. In a letter of October 11, 2019, Dr. [XXX]expressed “significant concern” that the “hearing day may[XXX]” for the Member (Motion Exhibit 2, Tab 8). He specifically indicated in his letter of January 31, 2020, that in the time leading up to the hearing, the Member “experienced a significant [XXX]specifically due to the prospect that his name would be published with the decision.” Dr. [XXX]reported that [XXX]occurred in July 2019 and that there was a second spike in [XXX]in October 2019 due to major stressors, including “the prospect that [the Member’s] name would be published” within the Discipline Committee’s decision, which, in Dr.[XXX]’s medical opinion, “would certainly lead to a worsening of his health and likely an increase in [XXX]and possibly[XXX]” (Motion Exhibit 3). In a letter of October 16, 2020, Dr. [XXX]again confirmed that the prospect of publication continued to increase the risk of [XXX]by the Member (Motion Exhibit 5).

18On the unopposed medical evidence provided by Dr. [XXX]and Dr.[XXX], the Panel finds that the test set out in the Act is met, and in fact, exceeded in the Member’s case. There is not only a possibility of serious harm to the Member in this case, but a likelihood of serious harm, based on the medical evidence provided to the Panel.

19Apart from the medical assessments, the Panel also placed considerable weight on the fact that the relief sought in this motion was unopposed by College Counsel. If College Counsel were not assured that there is significant risk of harm that could put the Member’s life in danger, the College, as an adversarial party, would likely have opposed a publication ban.

20In making its decision, the Panel also weighed the general principle that hearings should be open to the public, which includes the disclosure of a member’s name, against the Member’s exceptional circumstances. The open court principle serves the interests of public protection and transparency of the discipline process. However, when the Panel weighed these interests against the interest of reducing the risk of grave harm to the Member, the Panel determined that the use of its discretion to invoke a ban on publication of the Member’s name is an appropriate measure in these exceptional circumstances.

21Even though the Member’s name will not be published in this case, a notation will still appear on the Member’s public register profile to alert the public that the Member’s Certificate of Qualification and Registration has been revoked. The Panel’s Decision and Reasons will not be linked to the Member’s public register profile, given the circumstances of this case, but the anonymized decision will be publicly accessible on the College’s decision database and on external legal databases.

E. THE ALLEGATIONS

22The allegations against the Member in the Notice of Hearing dated September 10, 2018 (Hearing Exhibit 1) are as follows:

IT IS ALLEGED that [ZZD] is guilty of professional misconduct as defined in the Act in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(c) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);⁴

(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(e) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

F. STATEMENT OF UNCONTESTED FACTS

23College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Hearing Exhibit 2), which provides the following:

1. [ZZD] is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. During the 2012-2013, 2013-2014 and 2014-2015 school years, the Member was employed by the York Region District School Board (the “Board”) as an occasional teacher and taught at various schools, including [XXX] School (the “School”), until May 20, 2015.

3. At all material times between 2012 and 2015, the Student was a student who attended the School.

4. The Member supply taught at the School on 85 occasions between September 2012 and May 2014. The Member was the Student’s supply teacher on two or three days during the 2012-2013 school year, when the Student was in Grade [XXX]. Other than the two days that the Member supply taught in the Student’s class, the Student does not recall having any contact or communication with the Member at School.

5. In February 2014, when the Student was [XXX] years old and in Grade [XXX], the Student created a profile on a geosocial networking mobile dating application (“app”) designed to connect people who wish to meet others within their geographical area. To access this app and its services, one must affirm they are 18 years of age or older. The Student, aware of the age restriction, created a user profile to be viewed by other users of the app, and claimed to be 18 years old in order to be able to surf the app. The Student’s face was not visible in any of the photos associated with the Student’s profile.

6. On or about February 8, 2014, the Student was surfing the app and initiated contact with the Member through the app. During their first chat over the app, the Member asked the Student’s true age. The Student replied that he was [XXX] years old, when the Student was actually [XXX] years old. The Student also revealed he was a student at the School, and told the Member that he recognized the Member as having been the Student’s supply teacher previously. The Member indicated he was uncomfortable talking with the Student and ended the conversation.

7. Nevertheless, the Member and the Student continued to communicate via social media. Their communications between April 2014 and May 2015 included sexually explicit content.

8. Their communications also included sexual activity via Skype, including acts of masturbation in real-time performed by one or both participants during video chats.

9. On September 27, 2002, the Ontario College of Teachers approved a professional advisory on professional misconduct related to sexual abuse and sexual misconduct. Attached hereto and marked as Exhibit “B” is a copy of the College advisory.

PLEA OF NO CONTEST

10. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).

11. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.3), 1(15), 1(18), 1(19). The Member also acknowledges that the alleged conduct constitutes sexual abuse as defined in section 1 of the Act.

12. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

13. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

14. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

G. DECISION

24After the Panel decided the Member’s motion on October 19, 2020, the parties jointly submitted agreement materials with respect to the merits. Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member contravened subsection 1(14) of Ontario Regulation 437/97, be withdrawn. College Counsel sought the Panel’s permission to withdraw the allegation because it duplicated the subsection 1(5) allegation. The Panel granted this request.

25Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on October 19, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.3), 1(15), 1(18) and 1(19). The Member’s conduct constitutes sexual abuse as defined in section 1 of the Act.

H. REASONS FOR DECISION

26The Member did not contest the facts and exhibits referred to in paragraphs 1 to 9 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member sexually abused the Student by engaging in sexually explicit electronic communications and online sexual acts with the Student.

27The Member breached the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97. Among other things, members are expected to demonstrate their trustworthiness in relationships with students and to demonstrate care through their commitment to students’ well-being. The Member showed a complete disregard for these standards when he engaged in sexually explicit communications and acts with the Student on social media, including masturbating during Skype video chats.

28The Member exchanged sexually explicit messages and performed sexual acts online with a student, which constitutes sexual abuse of a student, contrary to subsection 1(7.3) of Ontario Regulation 437/97. The definition of sexual abuse at section 1 of the Act includes behaviour or remarks of a sexual nature by the member towards the student. The content of the Member’s electronic messages to the Student and his online sexual behaviour with the Student meet this definition.

29The Member’s actions also contravene section 264(1) of the Education Act. This provision requires that teachers exemplify the highest regard for a number of virtues including truth, justice, humanity, benevolence and purity. Given their unique position of trust and authority, members of the teaching profession must prioritize the safety and well-being of students and must always maintain professional boundaries with students. The Member failed to fulfill his professional duties in an egregious manner when he engaged in sexually explicit communications and online sexual acts with the Student.

30The Member’s conduct demonstrates a failure to act in the best interest of a student, in violation of the trust that parents, students and the public place in teachers, which is disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97.

31Considering the role of teachers as stewards of the public trust, the Member’s conduct is also unbecoming a member, contrary to subsection 1(19) of Ontario Regulation. The public’s trust in the teaching profession is eroded when members abuse their position of trust and authority to sexually abuse students.

I. PENALTY DECISION

32The parties agreed to a Joint Submission on Penalty (Hearing Exhibit 3), which was presented to the Panel. In an oral decision rendered on October 19, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Registrar is directed to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar;

2. The Member is directed to receive a reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).

33After hearing submissions from the parties regarding the form of the reprimand, the Panel ordered that the Member is to receive the reprimand via videoconference.

J. REASONS FOR PENALTY DECISION

34The Member’s professional misconduct consisted of or included the sexual abuse of a student, as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s Certificate of Qualification and Registration. The Panel makes both of these orders and notes that it has no discretion in this regard.

35With respect to the form of the reprimand, Member’s Counsel’s submitted that the Member’s preference would be to receive his reprimand in writing. College Counsel took no position on the form of the reprimand. The Panel determined that in the circumstances it was appropriate to order that the reprimand be delivered to the Member by videoconference.

36The Panel recognizes that it has the authority to also order costs or a fine in accordance with subsection 30(5) of the Act. The Panel, however, finds it reasonable to limit the penalty in this case to the statutory minimum in light of the Member’s plea of no contest and the joint submission on penalty, which can only be rejected if its acceptance would bring the administration of the discipline process into disrepute or would otherwise be contrary to the public interest.

37The Panel denounces the Member’s misconduct in the strongest terms.

Date: January 11, 2020

Diane Ballantyne, OCT Chair, Discipline Panel

Tom Potter Member, Discipline Panel

Stéphane Vallée, OCT Member, Discipline Panel

Footnotes

1. 1See Ontario College of Teachers v. T, 2000 ONOCT 17. The Panel notes that the Discipline Committee has also previously upheld criminal publication bans preventing the publication of members’ names in decisions that are anonymized and posted on the College’s website as Ontario College of Teachers v. ZZA; Ontario College of Teachers v. ZZB; and Ontario College of Teachers v. ZZC. These decisions were made in different circumstances than the Member’s case, but they demonstrate that the Discipline Committee has previously ordered similar relief to that sought by the Member in this case.
2. 2See Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, 2005 SCC 41 at paras. 26-28.
3. 3The Panel recognizes the principle that statutory provisions (in this case, subsections 32(7) and 32.1(1) of the Act) override the Dagenais/Mentuck test described in Toronto Star, supra, and that the following cases support this proposition: Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025; Grange v. Toronto (City), 2019 HRTO 1550; and R. v. Wagner, 2017 ONSC 6603.
4. 4Allegation withdrawn at College Counsel’s request.